Roger Thompson, Jr., Appellant, v. Harry L. Allsbrook, the Attorney General of North Carolina, Appellees, 813 F.2d 403 (4th Cir. 1986)

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US Court of Appeals for the Fourth Circuit - 813 F.2d 403 (4th Cir. 1986) Submitted July 7, 1986. Decided Oct. 15, 1986

Roger Thompson, Jr., appellant pro se.

Barry S. McNeill, North Carolina Department of Justice, for appellees.

W.D.N.C.

REMANDED.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert D. Potter, District Judge. (C/A No. C-C-85-0206-P).

Before ERVIN, WILKINSON and WILKINS, Circuit Judges.

PER CURIAM:


Roger Thompson, Jr., a North Carolina inmate, appeals the denial of his motion to file a belated notice of appeal. The district court denied the motion as being untimely filed, thus stripping the court of jurisdiction. The Charlotte Division of the United States District Court for the Western District of North Carolina received the motion on March 18, 1986, one day after the deadline. A review of the record on appeal, however, reveals that the Asheville Division of the United States District Court for the Western District of North Carolina stamped the envelope containing the motion "Received" on March 17.

The divisional office of the District Court received the motion in a timely fashion. Thompson thus complied with both Fed. R. App. P. 4(a) (5) and Fed. R. Civ. P. 5(e). See Myers v. Stephenson, 748 F.2d 202, 203 (4th Cir. 1984); United States v. Miller, 666 F.2d 991 (5th Cir. 1982). We therefore remand this case so that the district court can determine the existence of excusable neglect under Fed. R. App. P. 4(a) (5).

REMANDED.